Diary of Gideon Welles: Saturday, October 3, 1863

Mr. Seward called early this morning and read me the draft of a proclamation for Thanksgiving. I complimented the paper as very well done, and him for his talent in the preparation of such papers, which pleased him; but he made a remark to which I did not respond as favorably. He said it had been formerly claimed that Thanksgivings were a State institution, a State prerogative; he thought it a good time and opportunity to extinguish that claim and make such days national. I remarked there might be propriety, as at this time, in designating a day to be observed throughout the whole country, but there were occasions when a people in one State or section had reasons for special thanks, which reasons might not exist in other sections, as for a bountiful harvest in some latitudes when there might be famine and drought in others; that the most which could be done was recommendatory, and the practice was, I believed, now voluntary everywhere, but that until comparatively recently the observance of Thanksgiving and also of Fast was in my State compulsory, and "all servile labor and vain recreation" on those days were "by law prohibited"; that it would hardly do to make this institution national with mandatory orders, such as some States had ordered.

I called on the President this afternoon relative to certain proposed instructions which he, at the suggestion of Mr. Seward, wished should be issued to naval officers. He had been bored with troublesome company and was weary and exhausted. As I opened my portfolio the quantity of papers disturbed him. I stated briefly the case, which, being one of Seward's, he did not distinctly remember, and remarked the subject was, I thought, more important than he apprehended, that I had given it much time and thought, and it had increased in magnitude the more I had considered it. He became interested, recalled the case, and desired me to leave the papers with him and he would read them by himself. His mind was still confused and he wished to understand the subject more fully. Mr. Seward, whose inconsiderate and imprudent promises have involved him in difficulty, and who in consequence aims to involve the Administration in a most unwise and injudicious proceeding, will have an opportunity to read and digest my report. It will, I think, do him good and Lord Lyons no harm. Fox and Faxon both urge me to send a duplicate to the State Department, that the papers may be placed on file.

[The correspondence follows.]

• Abraham Lincoln to Gideon Welles, July 25, 1863
• Gideon Welles to Abraham Lincoln, September 30, 1863

Memoranda submitted for the consideration of the President, upon the proposed Instructions to Naval Officers:—

It is suggested at the instance it would seem of the British Government, or at least in conformity with its views and wishes, that our Naval Officers in command of the vessels composing our Navy, and at present engaged in belligerent operations, shall be instructed by the government in the following terms: —

“1. — You will avoid the reality, and as far as possible the appearance, of using any neutral port to watch neutral vessels and then to dart out and seize them on their departure.”

“2. — You will not, in any case, detain the crew of a captured neutral vessel, as prisoners of war, or otherwise, except the small number necessary as witnesses in the prize court.”

In considering the expediency of issuing at this time these instructions to our Naval commanders, it is proper, in the first place, to bear in mind, that if issued by us they will be, so far as is known, without any precedent in the history of the Naval service of any country engaged in war.

It should be observed, in the second place, that such instructions would impose upon our naval officers restrictions and limitations in the performance of their duties which are in nowise imposed upon them by any established principle or fixed rules of international law.

It must be borne in mind, in the third place, as being alike important and extraordinary, that this government is so urged to issue to its naval commanders these stringently restrictive instructions, without having the slightest guarantee that similar restrictions will be imposed in neutral ports upon the predatory sea-rovers under the rebel flag, whom neutral powers, under the lead of Great Britain, have already regarded and treated, in these ports, as having belligerent rights.

It should not be forgotten, in the fourth place, that this government is now urged to issue these instructions without any assurance by Great Britain, or any other neutral power, that if issued and acted upon by us in this war with the rebels, who have no Navy and no commerce, they will be held by Great Britain, or any other power, to constitute for it a precedent or a rule of action in its exercise of belligerent rights in any war, civil or international, in which it may hereafter engage; nor is the slightest intimation given that such instructions to our naval commanders now will induce, or tend to induce Great Britain, or any other neutral power, to abandon or to modify in our favor any course of action or policy in the present war, of which we have complained, or have had reason to complain.

In the fifth place, these proposed instructions seem to stand upon an unsound principle. It is a fundamental principle of public law that the neutral sovereign himself — and not the belligerent cruiser who lawfully resorts to the ports or waters within his jurisdiction — is the guardian of this neutrality, and of all its immunities and privileges. In his own prize courts he must, in every case where he can obtain jurisdiction, do justice, upon the claim of any party injured by the infraction of his neutral privilege. In the prize courts of the belligerent government, he, the neutral sovereign, can alone be heard, even to claim such redress for such violation of his neutrality. So, too, neutrality having its duties as well as its rights, the public law holds the neutral government, and it alone, responsible to all concerned, for any violation of neutrality within the limits of its jurisdiction. In the absence of treaty stipulations to the contrary, every neutral government exercises the right to determine and prescribe for itself, upon its responsibility, the conditions of ingress, egress, sojourn and conduct within its ports and territorial waters, upon which alone it will permit belligerent cruisers to resort to those places and enjoy such, and only such, of their accommodations as it may see fit to afford. Now, in defiance of this fundamental principle that the neutral government is always the judge of the conditions upon which the hospitality of its ports may be enjoyed by belligerent cruisers, it is proposed in these instructions that we, being belligerents, should gratuitously proceed beyond the requirements of public law and belligerent usage and establish for all our ships of war, certain additional restrictive conditions, within which only they shall use any neutral port. What assurance have we that any neutral government desires us now, or will desire us hereafter to take such action, restricting ourselves in her ports, in the exercise, outside of her limits, of our belligerent rights, either of search or of capture? Will any one neutral power — will Great Britain herself, at this time — give us assurance that in any future war which may happen, it, being then neutral, will by municipal regulation, adopt the stringent terms of the proposed instructions, and make them an indispensable condition precedent to the use of all her ports by any belligerent cruiser? If not, then why should we, as belligerents, be expected now to put such a gratuitous disability upon all our cruisers, in all the neutral ports of the world? Is it not enough that our cruisers should in all neutral ports obey all the law, public and municipal, which they find in force there, and in case of its violation, by accident and against our fixed policy, afford, in the proper manner, through the judicial tribunals or otherwise, prompt and adequate reparation?

In the sixth place, it seems to follow from these views, that to instruct our cruisers, as above proposed, is no part of our business as belligerents? Therefore such action by us at this time would probably be to some neutral powers, and ought to be to all powers which are really and earnestly neutral, unwelcome. It behooves us then to consider upon what instance or urgency it is that we are to take this action, thus modifying our relations as they stand under the public law, to every neutral port, and to every ship claiming to be neutral, but being in fact engaged in illicit navigation or commerce. No one neutral power has any just ground to ask from us such wide-reaching action. There should be a neutral unanimity in the request if we are to grant it; and even then such unanimous request should be accompanied by stipulations of reciprocity of the rule in all future wars. Such conditions seem to be required in order to justify us in acceding to a proposition which goes to the curtailment of our rights in law as belligerents, at a moment when we have the most arduous blockade to enforce which any nation ever undertook to make effectual, and the most adventurous and persistent illicit trade to suppress, against which any nation ever attempted practically and not merely on paper, to guard.

It is true — and this idea appears to have occurred strongly to your mind — that the issuing of such instructions by us and obedience to them by our ships of war, would constitute no infraction of public law, because it is the unquestionable right of any government engaged in war to surrender such portions as it sees fit of its belligerent rights and privileges; and no other injury is, by such surrender, inflicted upon neutrals than that which may be found in its manifest tendency to enfeeble and thus prolong the war. It should, however, be remarked that the second of these proposed instructions is in a direction and of a tendency opposed not only to the universal and traditional policy of belligerent governments, as expressed in their statutes, in the rulings of their prize courts and their instructions to cruisers, but also to what is often insisted upon, especially by neutrals in cases of capture, as a duty of captors. No adjudged case, it is believed, can be found in which the prize court, especially in Great Britain, has ever held that the captor erred in sending in with his prize too many of the officers, crew or passengers found on board at the time of her capture. Certainly no adjudged case can be found in which the right of the captor, thus to send in with his prize as many of the persons found on board of her as he may see fit to send, has been questioned. The allegation that any person found at the time of capture on board of any lawfully captured ship has any right, in law, immediately after the capture, to leave the ship against the will of the captor, or that the captor is bound in law to give his consent to such leaving, is believed to be wholly novel. It is undoubtedly true, in general, that the temptation and inclination of captors are to err in the other direction, and to retain too few rather than too many of the persons so captured. In so doing captors subject themselves to the frequent complaints and censures of the prize court, and not infrequently to its penalties. In fact to instruct a naval commander never to detain any neutral person found on board the captured neutral ship, unless such person be necessary as a witness; is to subject the commander to the harsh necessity of judging upon the spot in a case perhaps very complicated and important, just how many and what persons may be necessary as witnesses, with the certainty of being censured by his government for violation of his orders if he detain too many, and of being censured and perhaps mulcted by the prize court for insufficient performance of his duty if he detains too few. It is unnecessary to say that no principle or rule of international law places a lawfully commissioned, honest and faithful capturing officer in so critical a position. It is the clear belligerent right of his government to shield him, while lawfully engaged in his duties, from so severe and perilous a responsibility. Our gallant naval officers, it is therefore suggested, might justly feel that the public service in their hands and the public right were cramped and weakened, and themselves embarrassed, if not aggrieved, by such an instruction.

In regard to the first of the proposed instructions, it is not deemed necessary to discuss elaborately, in this paper, the extent to which its terms augment and aggravate the restrictions which international law, particularly as expounded and applied by the highest authorities of Great Britain, both judicial and juridical, impose upon the conduct of commanders of public ships of war of a belligerent government lawfully sojourning within neutral ports. It is proper, however, to state that this important point has been maturely considered, and the leading British authorities examined and collated with care. Citations from these authorities, with brief comments upon them, will be found in the accompanying appendix.

Suffice it here to say that while these British authorities emphatically lay down the rule that no acts of war, either immediate or proximate, are permitted by the public law to belligerent vessels in waters within neutral jurisdiction; it is yet with the utmost reserve, circumspection and tenderness, that they enter upon or even approach the delicate question of the extent to which the belligerent cruiser, whether a public ship or a privateer duly commissioned and lawfully sojourning in neutral ports or waters, may, under international law, in the absence of municipal regulation to the contrary, avail itself in its act of departure, and after its departure from such places, of any facilities or remote and indirect aids lawfully obtained there, for the prosecution of its belligerent operations against the adverse belligerents, or for the exercise of its belligerent rights upon neutral ships outside the neutral jurisdiction. Of these facilities and indirect aids, lawfully obtainable by peaceable means, in the neutral ports and waters, information often is, and always may be, the most important. In the absence of municipal regulation to the contrary, such cruiser lawfully sojourning in the neutral port has a perfect right in public law, in order to obtain such information, to watch in a peaceable manner, most vigilantly, all vessels in the port, or coming into it or going out of it; and to dart out of the port just when he pleases, with the purpose to act upon such information in the exercise of his belligerent rights upon the high seas, outside of the neutral jurisdiction, upon all neutral commercial vessels, in the form of search and of capture, if such search shall discover a probable case of navigation or trade, illicit as against his government. In so doing, such cruiser has but made an unforbidden passage over neutral territorial waters, in order to exercise in a lawful place his belligerent right. This under the public law, in the absence of municipal restraint, he has a perfect right to do.

If the Sovereign of the neutral port fails to prohibit such cruiser from using his port as a station for the habitual doing of these things — as distinguishable from a place of occasional visit and reasonable sojourn — then the adverse belligerent sovereign certainly, if the same privilege be refused to him and other neutral governments, perhaps, may with reason complain of the neutral sovereign's conduct, in allowing his port to be so used, as "noxious" and "unfriendly," and even perhaps unneutral. But they have no right in law to complain of the lawfully commissioned belligerent cruiser for availing himself of the liberty thus allowed him; and they are bound to consider that if the neutral sovereign does not prohibit the continuance of such practices — nor demand reparation for them — by such belligerent, then he intends to allow; and it is for this very reason that in such case they have sometimes charged him, and him only, with noxious and unfriendly conduct.

Such being the public law, it seems certain that the Naval vessels of the United States are not bound by that law, in the absence of municipal regulations, to govern for themselves their conduct as belligerents, by the proposed stringently restrictive instructions. This being the fact, if there were any one neutral government specially urging such instructions, and if it should happen that the subjects of such neutral government were, in its own ports and therefore under its own eyes, engaged in furnishing upon a large scale to the rebels, not only the munitions of war, but vessels, armament and even crews, for harassing and burning upon the high seas, our commercial ships, could it be considered our duty or our wise policy to issue, at the instance mainly of that power and in response to its almost exclusive complaint, such instructions so restricting our belligerent rights in our use of every neutral port? But the wisdom of your policy in restricting our Navy in the use of its belligerent rights within the most vigorous limits of established public law, is manifest, and is in conformity, not only with the judgment of your wisest predecessors, but also with the traditional practice of the United States, and with their permanent interests, as appreciated by the great popular instinct of the present time. Indeed the enlargement of neutral immunities, in proper methods and by the common consent of nations, is an object worthy of your statesmanship, even in the present crisis. Especially is this the case when, as in this instance, you seek to combine with such liberal policy, a palpable proof to every government claiming to be neutral, of your desire to pursue toward it and toward all, to every proper and rightful extent, a course of conciliation.

In these views, it is respectfully suggested that, if you are urged by neutral governments to cause these instructions to be issued, the inquiry may properly be made of them, whether they, or any of them, are willing to adopt an identical rule of action in any future war, international or domestic, in which they may be engaged. In that event, the instructions proposed might, perhaps, upon the assurance to that effect, well receive your favorable consideration.

If a negative answer on the other hand should be given to such an inquiry, then it may be well to request any neutral government which presses this policy upon you, to produce from the records of its own practice as a belligerent any precedent of identical, or even similar instructions issued within the present century, to the commanders of its ships of war. Such precedents might doubtless have considerable weight in inducing you to adopt a policy in the same direction. Should no such precedent be forthcoming at your request, then it may be proper in response to any government, — the British Government for instance — which may especially desire that these proposed instructions should be issued, or that our belligerent rights as they exist under the public law should be further restrained by our own action, to request that any such restraining instructions which may have been within recent memory issued by such government, when a belligerent, to its naval officers, should now be furnished to you for your consideration. In such case it will be easy for the government of the United States to prove that it desires while maintaining its own belligerent rights not to be surpassed by any other government in a just and friendly respect for all the rights and lawful interests of neutrals.

Commander Shufeldt called on me. Thinks the capture  of Charleston impracticable by the force now there. Says Dahlgren has been a good deal ill, and there has been much to discourage him. The Army, he says, fails to do justice to the Navy, without which they would be speedily driven away. There have been some mistakes, errors which seem to have caused irritation between the two branches of the service. Dahlgren has not spared himself, and his long and arduous labors have been such as would wear down a more robust man. More than exhausting physical labor have been the mental anxieties he has endured, — the loss of his two fleet captains, jealousies as to his professional advancement without corresponding sea service or naval achievement in battle, the morbid hostility of such of the Du Pont clique as remain in the squadron, army antagonism, and ignorance and prejudice fostered by it.

[Appendix.]

SOURCE: Gideon Welles, Diary of Gideon Welles, Secretary of the Navy Under Lincoln and Johnson, Vol. 1: 1861 – March 30, 1864, p. 452-67